BILL NUMBER: SB 97	CHAPTERED  07/22/99

	CHAPTER   155
	FILED WITH SECRETARY OF STATE   JULY 22, 1999
	APPROVED BY GOVERNOR   JULY 22, 1999
	PASSED THE SENATE   JULY 8, 1999
	PASSED THE ASSEMBLY   JUNE 28, 1999
	AMENDED IN ASSEMBLY   JUNE 8, 1999
	AMENDED IN SENATE   MARCH 22, 1999

INTRODUCED BY   Senator Burton
   (Coauthor:  Assembly Member Scott)

                        DECEMBER 8, 1998

   An act to add Section 1278.5 to the Health and Safety Code,
relating to health facilities.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 97, Burton.  Health facilities.
   Existing law provides for the licensure of health facilities, as
defined, by the State Department of Health Services.  Under existing
law, violation of those licensing provisions, or willful or repeated
violation of the related rules or regulations, is a misdemeanor.
   Existing law prohibits certain health facilities, known as
long-term health care facilities, from discriminating or retaliating
against a patient or employee of those long-term health care
facilities because the patient or employee presents a grievance or
complaint, or initiates or cooperates in an investigation or
proceeding by a governmental entity, relating to the care, services,
or conditions at those long-term health care facilities, except as
provided.  Existing law makes violation of this prohibition subject
to a civil penalty of not more than $10,000.
   Existing law provides that discriminatory treatment of an
employee, as described, or discriminatory treatment of a patient,
within specified time periods of that patient's or employee's
presentation of a grievance or complaint, or initiation or
participation in an investigation or proceeding, raises a rebuttable
presumption that the discriminatory action was retaliatory.  Existing
law provides that willful violation of this provision is an
infraction punishable by a fine of not more than $10,000.  Existing
law provides that a person who has been discriminated against under
these provisions is entitled to specified remedies.
   This bill would impose similar prohibitions on health facilities
other than long-term health care facilities, except that violation
would be subject to a civil penalty of not more than $25,000 and
willful violation would be a misdemeanor punishable by a fine of not
more than $20,000.  By creating a new crime, this bill would impose a
state-mandated local program.
   The bill would prohibit its provisions from applying to an inmate
of a state correctional facility or an inmate housed in a local
detention facility.
  The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1278.5 is added to the Health and Safety Code,
to read:
   1278.5.  (a) The Legislature finds and declares that it is the
public policy of the State of California to encourage patients,
nurses, and other health care workers to notify government entities
of suspected unsafe patient care and conditions.  The Legislature
encourages this reporting in order to protect patients and in order
to assist those government entities charged with ensuring that health
care is safe.  The Legislature finds and declares that whistleblower
protections apply primarily to issues relating to the care,
services, and conditions of a facility and are not intended to
conflict with existing provisions in state and federal law relating
to employee and employer relations.
   (b) (1) No health facility shall discriminate or retaliate in any
manner against any patient or employee of the health facility because
that patient or employee, or any other person, has presented a
grievance or complaint, or has initiated or cooperated in any
investigation or proceeding of any governmental entity, relating to
the care, services, or conditions of that facility.
   (2) A health facility that violates this section shall be subject
to a civil penalty of not more than twenty-five thousand dollars
($25,000).  The civil penalty shall be assessed and recovered through
the same administrative process set forth in Chapter 2.4 (commencing
with Section 1417) for long-term health care facilities.
   (c) Any type of discriminatory treatment of a patient by whom, or
upon whose behalf, a grievance or complaint has been submitted,
directly or indirectly, to any governmental entity or received by a
health facility administrator within 180 days of the filing of the
grievance or complaint, shall raise a rebuttable presumption that the
action was taken by the health facility in retaliation for the
filing of the grievance or complaint.
   (d) Any discriminatory treatment of an employee who has presented
a grievance or complaint, or has initiated, participated, or
cooperated in any investigation or proceeding of any governmental
entity as specified in subdivision (b), if the health facility had
knowledge of the employee's initiation, participation, or
cooperation, shall raise a rebuttable presumption that the
discriminatory action was taken by the health facility in
retaliation, if the discriminatory action occurs within 120 days of
the filing of the grievance or complaint.  For purposes of this
section, "discriminatory treatment of an employee" shall include
discharge, demotion, suspension, any other unfavorable changes in the
terms or conditions of employment, or the threat of any of these
actions.
   (e) The presumptions in subdivisions (c) and (d) shall be
presumptions affecting the burden of producing evidence as provided
in Section 603 of the Evidence Code.
   (f) Any person who willfully violates this section is guilty of a
misdemeanor punishable by a fine of not more than twenty thousand
dollars ($20,000).
   (g) An employee who has been discriminated against in employment
pursuant to this section shall be entitled to reinstatement,
reimbursement for lost wages and work benefits caused by the acts of
the employer, and the legal costs associated with pursuing the case.

   (h) This section shall not apply to an inmate of a correctional
facility of either the Department of the Youth Authority or the
Department of Corrections or to an inmate housed in a local detention
facility including a county jail or a juvenile hall, juvenile camp,
or other juvenile detention facility.
   (i) This section shall not apply to a health facility that is a
long-term health care facility, as defined in Section 1418.  A health
facility that is a long-term health care facility shall remain
subject to Section 1432.
   (j) Nothing in this section abrogates or limits any other theory
of liability or remedy otherwise available at law.
  SEC. 2.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
